NYCTL-1 Trust v Cruz

[*1] NYCTL-1 Trust v Cruz 2007 NY Slip Op 51144(U) [15 Misc 3d 1144(A)] Decided on June 7, 2007 Supreme Court, Kings County Schack, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 7, 2007
Supreme Court, Kings County

NYCTL-1 Trust, and the Bank of New York as Collateral Agent and Custodian, Plaintiff

against

Antonio Cruz, Prudencio Velez, et al., Defendants.



35985/05



Appearances:

Plaintiff

Shapiro & Dicaro, LLP

Commack NY

Defendants

No Defendant(s) to report because Judge Schack wrote on this issue sua sponte when an order was presented before him for signature.

Arthur M. Schack, J.

Plaintiff's counsel, in this tax lien foreclosure matter, moves for an order requesting that the affidavits of publication of the summons and complaint upon defendant Antonio Cruz be deemed filed timely nunc pro tunc. This motion must be denied. The Court cannot waive this jurisdictional defect.

On August 11, 2006, I issued an order for service by publication upon defendant Antonio Cruz, pursuant to CPLR Rule 316. I stated that:

it appears that the said Defendant Antonio Cruz, cannot be served

personally within the State of the New York, and Plaintiff having

thereby made proof to the Court's satisfaction that the location of

said Defendant or their personal representative cannot with due

diligence be ascertained and the Plaintiff has been and will be unable

in the exercise of such due diligence to make personal service of the

Summons herein or by any other prescribed method on said Defendant

within the State;

The order required that "the first publication be made within thirty days after the entry of this order," and the order was entered by the Kings County Clerk on August 17, 2006. [*2]

Plaintiff's counsel, in her affirmation in support of the motion, admitted to the Court that publication did not commence within thirty days after the entry of the August 11, 2006 order. She states, in ¶ 2 of her affirmation, that:

The reason for the delay is untimely retrieval of the entered Order.

For some reason, we were unable to obtain a copy of the entered

Order within the proscribed thirty (30) day time period. Upon receipt,

thereof, we immediately sent it for publication and did not realize

the thirty (30) day period had expired.

Despite plaintiff's counsel further claiming, that other than the publication delay, the service by publication was correct, the Court may not deem the affidavits of publication upon defendant Antonio Cruz as filed timely nunc pro tunc. Failure to comply with the strict time requirements of CPLR Rule 316 (c) is jurisdictional. The

Rule states that "[t]he first publication of the summons shall be made within thirty days after the order is granted. Service by publication is complete on the twenty-eighth day after the day of first publication . . . [Emphasis added]." Professor Vincent C. Alexander, in his Practice Commentaries (McKinney's Cons Laws of NY, Book 7B, CPLR 316) explains that "[n]oncompliance with this requirement has been held to be a jurisdictional defect. Caton v Caton, 1972, 72 Misc 2d 544, 339 N.Y.S.2d 92 (Sup Ct. Monroe County)." In citing the Caton case, Professor David Siegel, in NY Prac § 107, at 195 [4th ed], instructs that "[f]irst publication of the summons must be made within 30 days after the order for service by publication is granted. This is strict. It has been held that even a short delay will void the service." See Plitnick v Fernandez, 132 Misc 2d 183 (Scholarie County Ct 1986).

Service by publication is chancy in obtaining jurisdiction. It is allowed for in foreclosure actions, when as stated in CPLR § 315, "service cannot be made by another prescribed method with due diligence." Justice Robert Jackson, in Mullane v Central Hanover Bank & Trust Co., 339 US 306, 313 (1950), noted that "[m]any controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case [Emphasis added]." Mr. Justice Jackson observed, at 315, that "[i]t is not an accident that the greater number of cases reaching this Court on the question of adequacy of notice have been concerned with actions founded on process constructively served through local newspapers." However, the Untied States Supreme Court approved of service by publication to obtain jurisdiction in the proper case. Mr. Justice Jackson stated, at p. 317:

This Court has not hesitated to approve of resort to publication

as a customary substitute in another class of cases where it is not

reasonably possible or practicable to give more adequate warning.

Thus it has been recognized that, in the case of persons missing or

unknown, employment of an indirect and even a probably futile

means of notification is all that the situation permits and creates

no constitutional bar to a final decree foreclosing their rights [citations

omitted].

In Valz v Sheepshead Bay Bungalow Corporation, 249 NY 122, 130 (1928), cert denied [*3]278 US 647 (1928), the Court of Appeals held:

The Legislature has the power to provide for service of

the summons without the State by . . . publication. It is not disputed

that service of a summons in the manner provided by the statute

gives to the non-resident defendants sufficient notice of the action

and opportunity to appear and be heard therein, and that a judgment

rendered thereafter, even though the non-resident defendants do not

appear, is a judgment rendered in accordance with due process

of law. There must, however, be a substantial compliance with

these provisions of the statute; otherwise the court is without

jurisdiction to render a judgment binding upon a non-resident

who has not appeared. The Legislature must determine the steps

which must be taken to confer jurisdiction upon the courts of the

State. Notice to a defendant of the pendency of the action given

in other manner is nugatory and may be disregarded. Wuchter v.

Pizzutti, 276 US 13 [1928], and cases there cited. [Emphasis added].

In the instant action, plaintiff's counsel clearly admits to non-compliance with this Court's order for CPLR Rule 316 service by publication. If I were to grant the requested relief to deem service by publication timely nunc pro tunc, it would be, as stated in the Valz case, "nugatory and may be disregarded." However, the Court will grant plaintiff leave to submit a new order for service by publication, pursuant to CPLR Rule 316, so that plaintiff may obtain jurisdiction over defendant Antonio Cruz.

Conclusion

Accordingly, it is

ORDERED that the motion of plaintiff NYCTL-1 Trust, and the Bank of New

York as Collateral Agent and Custodian, for an order requesting that the affidavits of publication of the summons and complaint upon defendant Antonio Cruz be deemed filed timely nunc pro tunc, is denied; and it is further

ORDERED, that plaintiff NYCTL-1 Trust, and the Bank of New York as Collateral Agent and Custodian, is granted leave to submit a new order for service by publication, pursuant to CPLR Rule 316, for plaintiff to obtain jurisdiction over defendant Antonio Cruz.

This constitutes the Decision and Order of the Court.

ENTER

___________________________

HON. ARTHUR M. SCHACK

J. S. C. [*4]